Concerns about the effects of toxic blue green algae have caused a number of clean water advocacy groups — mostly from Wisconsin — to file a civil action against the U.S. Environmental Protection Agency (EPA).

According to the notice letter to the EPA Administrator Lisa Jackson, “Every summer, Wisconsin communities and tourism-related businesses cope with the detrimental effects of nutrient pollution, ranging from foul, smelly water to health threats, such as toxic algae and contaminated drinking water, and from nuisance algae blooms to fish kills and beach closures. Due to increasing nutrient concentrations in Wisconsin’s waters, the frequency and duration of toxic algal blooms has severely increased over the past decade.”

Under the Clean Water Act (CWA), a special provision allows citizens to file a civil action in federal court for failure of the administrator of the EPA to perform duties imposed by the act.

A federal judge in Tallahassee, Fla. approved a consent decree earlier in the month on a similar suit against the EPA in the state of Florida. That decree requires the EPA to set legal limits for the nutrient pollutants that trigger harmful algal blooms (HABs) in the state of Florida.

Noxious blooms

HABs have created numerous problems for citizens of Wisconsin. Residents living near lakes Tainter and Menomin have reported everything from rashes to serious respiratory problems during the past summer and fall seasons as the blooms created noxious odors and unbearable living conditions around the lakes. Several dogs in Wisconsin died last summer after ingesting algae while playing and swimming in the polluted waters.

Elizabeth Lawton of Midwest Environmental Advocates in Madison and Albert Ettinger of Environmental Law & Policy Center in Chicago are listed as the counsel for the parties filing the action.

Addressing a meeting of the Clean Water Network Regional Caucus in Minneapolis, Minn. last July, Ettinger provided an example of serious nutrient pollution. The Clean Water Act, he explained, covers manure pollution from Concentrated Animal Feeding Operations (CAFO’s), but not if the manure has been converted to storm water.

“This gives a free pass to the large industrial farmers to easily pollute our streams and rivers,” Ettinger said, noting that although a CAFO is considered a “point source” of pollution, the manure can be taken down the road and spread on another farm so that it is no longer considered a source. (Pollutants from nonpoint sources are not currently controlled in Wisconsin.)

10 years later

In their notice to the EPA, Jackson and Ettinger referenced the lack of a timely response from the Wisconsin Department of Natural Resources (WIDNR): “On Feb. 1, 2008, almost 10 years after EPA told states to develop numeric nutrient water quality standards, the WIDNR convened a group of interested stakeholders and held its first Phosphorus Criteria Advisory Committee meeting. To guide the development of phosphorus criteria for streams in Wisconsin, DNR relied on U.S. Geological Survey (‘USGS’) data and reports regarding water quality impacts of nitrogen and phosphorus on the biotic integrity of Wisconsin streams and rivers. The WIDNR has yet to propose that its governing board, the Natural Resources Board, amend the Wisconsin Administrative Code to include numeric criteria for phosphorus.”

There is a 60-day waiting period under CWA provisions before the group can file the formal lawsuit. Although no economic study has been conducted on the losses to local businesses and real estate values due to the stench and unsightly blooms that plague the Tainter and Menomin lakes, it is estimated that the economic cost due to freshwater HABs in the United States annually is between $2.2 and $4.6 billion.

Setting standards

Ettinger was asked on Nov. 27 if he felt the historic consent decree in Tallahassee that requires the EPA to set legal limits for nutrients in Florida waters influenced his decision to move forward in the state of Wisconsin.

Regarding whether the enforcement would come from the federal or state level if nutrient limits are set for Wisconsin, he said, “Initially from the state — and the whole process is complex. Standards should lead to setting limits on some point sources, but not necessarily right away.”

About small towns which are still unable to meet point source pollution standards, Ettinger said, “Just being small does not make a source nonpoint. I would argue that most ‘septic’ systems that are resulting in pollution of surface waters are point sources. That said, smaller point sources generally don’t get much enforcement attention. Again this is a legally complex point, and I can’t really answer your questions without writing a treatise.”